我国认可默示仲裁协议的可行性分析

随着社会经济的发展,对仲裁协议书面形式的突破成为仲裁发展的必经之路,因此默示(行为)表达的仲裁意愿能否认定为当事人之间存在有效的仲裁协议成为理论与实务共同关注的问题。国际上,对默示仲裁协议的认定态度不一。本文就我国默示仲裁的可行性问题进行初步研究,主要从默示仲裁的定义、各国以及国际条约的规定出发,结合我国现状进行分析,主张认可默示仲裁协议的有效性。

The Feasibility Analyse of Recognition of Implied Arbitration Agreements in China

For the development of economy, it is necessary to break the written form of arbitration agreements. Not only the arbitration theory but also arbitration practice focus their attention on this question,whether the will of arbitration implied by acts is also valid as well as the written arbitration agreements. Now there is no unanimous attitude to the validity of implied arbitration agreements. This paper is an analyse of feasibility of recognition of implied arbitration agreements. Basing on the definition of implied arbitration agreements, according to the regulation of international conventions, and combining with the practice of our country, it is feasible to recognize the validity of implied arbitration agreements.